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War on terror or war on justice?

Geoffrey Bindman
3 March 2005

Since 11 September 2001 citizens of western states have seen a steady erosion of the legal safeguards previously available to those suspected of crime. At the same time the powers of government and executive to interfere arbitrarily with the lives of individual citizens have been increased. In Britain especially, this has been done in the name of the greater protection of the public against the threat which is labelled terrorism. In the so-called “war on terror”, the traditional openness and independence of our judicial system have been sacrificed to the dubious claims of secrecy by an increasingly powerful executive.

Most attention has been paid to the United States where, with the infamous Patriot Act, individual liberty has been under the most sustained attack. But in Britain, America’s chief ally in the war on terror, equally serious infringements of liberty have been taking place with not enough public discussion and little awareness in the wider world.

The latest manifestation of the tendency to attack freedom in the name of the threat of terror is the attempt by Charles Clarke – appointed Home Secretary in December 2004, and already building on the work of his notably illiberal predecessor David Blunkett – to introduce a form of “house arrest” for people suspected, but not charged or convicted, of terror offences.

The prime minister, Tony Blair, has defended this proposal – the Prevention of Terrorism Bill, presented to the House of Commons on 22 February 2005 – by arguing that protecting the country from terrorism is the single most important role of government, and that everything else, including preserving the tradition of individual liberty, is secondary. In this article I want to test Blair’s assertions, on two grounds: that this legislation is effective in fighting terrorism, and that such limitations on freedom are the price we have to pay for combating terror.

Also by Geoffrey Bindman on openDemocracy:

“Justice in the world’s light” (June 2001)

“Civil liberties and the ‘war on terror’” (May 2004)

“From race to religion: the next deterrent law” (August 2004)

The retreat from freedom

The liberty of the subject has been a fundamental value in Britain for centuries. This basic idea stems from Magna Carta in 1215 and the notion of habeas corpus (the immunity of the individual from arbitrary arrest), first enshrined in the Habeas Corpus Act of 1679.

Magna Carta, the historic document forced on the English king by powerful nobles, states: “No freeman shall be taken or imprisoned or disseised [dispossessed] or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land”. Here we see the origin of jury trial and indeed of the rule of law itself.

Although Magna Carta itself only devolved power down from the monarch to a small group of rich landowners, its importance lies in the fact that it started the process by which royal power was delivered to the people; as historian GM Trevelyan argues, it had its main impact on the political imagination of the descendants of 1215.

Assaults on the principles laid down in Magna Carta are hardly new, and as at present, they have often been fuelled by the invocation of (real or imagined) foreign threats. One instructive historical precedent is the reaction of William Pitt’s government to the perceived dangers of revolution in the late 18th century.

It is hardly surprising that news of the French revolution in 1789 caused consternation among the ruling elite in Britain; nor that others were inspired by the overthrow of a monarchy to press for similar reforms in their own country, as many British reformists did. But the response of Pitt’s government was incommensurate with the threat, and in its misuse of the law, exaggeration of the extent of the danger and blatant disregard for the framework of liberty, it shares much with the current historical moment.

Pitt’s government panicked and several of the leaders of the reform movement were arrested and charged with treason. Unlike today the government did not claim the power to detain without trial – to do so would have violated habeas corpus; instead it launched a prosecution for treason.

The great treason trials of 1794 are a landmark in the history of civil liberties. The indictment claimed there was a plan to seize power, alleging that pikes and knives had been manufactured and gangs had been recruited and given military training. The evidence came from spies employed by the Home Office who had infiltrated the meetings of the London Corresponding Society, the organisation campaigning for electoral reform of which the main defendant, Thomas Hardy, was the secretary.

Unfortunately for the prosecution, its witnesses were unconvincing and their evidence collapsed under cross-examination from the great civil-rights advocate Lord Erskine. The jury acquitted all the defendants. Needless to say the threats to national security claimed by government witnesses never materialised.

The power to be arbitrary

While the 19th century saw the adoption of many of the reforms of parliament that earlier generations of reformists had been unable to secure, it also saw a rolling back of key planks of the framework of individual liberty. In 1816 fears of the French under Napoleon led to the suspension of habeas corpus, to legitimised detention without trial, and to more sedition and treason trials. In 1871, in an atmosphere of panic over Irish rebellion, a statute authorised detention for a limited period of those suspected of planning armed insurrection.

At the outbreak of war in 1914, the Defence of the Realm Act (Dora) continued the pattern established in the previous century, but introduced some important new discretionary elements. It gave broad powers to the executive to authorise internment on the instructions of the Home Secretary. An order in council authorised the Home Secretary to impose internment or restrictions on residence or movement on the recommendation of military authorities and to detain those deemed to be “of hostile origin or associations”.

The bill, which was rushed through parliament in a single day, created these extraordinary powers without parliamentary debate and with little political or judicial opposition. The lone dissenting voice was that of judge Lord Shaw:

“Parliament never sanctioned either in intention or by reason of the statutory words employed in the Defence of the Realm Acts, such a violent exercise of arbitrary power.”

The power of arbitrary detention came to an end in 1918, but when the second world war began in 1939, plans were already well advanced to reinstate it. An Emergency Powers (Defence) Act was passed a week before the war started. It gave rise to the notorious regulation 18B, which authorised the Home Secretary to lock up any person indefinitely merely by claiming reasonable cause to believe that he or she was “of hostile origin or associations”. Within months hundreds of people were detained. The intention was to disable known Nazis or their sympathisers, but in many cases it was actually German Jews fleeing Nazi terror who were interned.

From foreign states to terrorists

That the mindset embodied in regulation 18B survived the post-war era is evident in legislative reactions to the low-level war from the late 1960s to the late 1990s in Northern Ireland known (with perhaps typical English understatement) as the “troubles”. A landmark of this drawn-out conflict was the passing of the Prevention of Terrorism (Temporary Provisions) Act in 1974 which was, in the familiar way, rushed through parliament as a response to the bomb attacks in Birmingham in November of that year (and was followed by further legislation in 1976, 1984, and 1989). The 1974 act banned membership of certain Irish organisations and allowed an extended period of arrest of certain suspects before they had to be brought before a court.

This legislation was expanded into the Terrorism Act (2000) which introduced a broad definition of terrorism and a number of new offences associated with it. It also widened the scope of the law far beyond Ireland. It proscribed a long list of organisations claimed to support terrorism abroad (though many of them disputed this claim), and “support” for such organisations was made a criminal offence.

I had occasion to experience the absurdity of this particular law at first hand. My firm was asked to advise one of these organisations and at a conference with counsel in Matrix chambers we suddenly realised that we were committing the criminal offence of attending a meeting of more than three people to promote the interests of a banned organisation We wrote confessing our crime to the attorney-general who kindly assured us we would not be prosecuted.

Interestingly, the Terrorism Act explicitly banned al-Qaida, but it also established a principle of suppressing political freedom which would also have criminalised support for the African National Congress during the apartheid era. We should not forget that Margaret Thatcher described Nelson Mandela as a terrorist; by the definition in the Terrorism Act he was.

A new kind of war

Arguably what the attacks of 9/11 changed was not the reality of the danger which our world has always faced from violent conflict but attitudes in the United States towards political violence which it had not experienced before, on such a scale, within its own borders. The result was a series of draconian legal measures attempting to deny all legal safeguards to those deemed by the executive to pose a threat to security. The so-called Patriot Act embodied these legal measures. What is especially disappointing given our long experience of similar assaults on civil liberties is that the British government, as in so much, rapidly followed suit; the Patriot Act was mirrored in British law in the Anti-Terrorism Crime and Security Act (ATCSA) of 2001.

While the measures in Britain generally fall short of those in the United States in terms of their invasion of the rule of law and civil liberties, and there is no equivalent of the extraordinary legal black hole created by the US government at Guantànamo, there is no cause for British smugness; one aspect of the ATCSA is every bit as flagrant in its disregard for civil liberties and international law.

“Part 4” of ATCSA grants the Home Secretary the power to deport or detain indefinitely any non-citizen he “reasonably believes” to be an international terrorist. This power is a long-standing feature of immigration law, and specifically exempted in Article 5 of the European Convention on Human Rights (ECHR, 1950) from the general prohibition on detention without trial and conviction. In this sense it is relatively uncontroversial.

But the use of such power presented a problem for the British government. If they decided to deport someone they suspected of terrorism back to a country where that person was likely to be put at risk from torture or other inhuman and degrading treatment, then although allowed by Article 5 it would breach Article 3 of the ECHR. If this prevented the eventual removal of the non-citizen, it would prevent also “detention pending removal”, thus rendering the government’s technical right to detain invalid.

So in order to be able to detain non-nationals without trial the government decided to opt out of (or “derogate”) from Article 5 of the convention. Such derogation can only be done under the convention’s Article 15 if there is a war or public emergency threatening the life of the nation; and in that case, the measures taken must be limited to the extent strictly required by the exigencies of the situation.

Parliamentary unease at this proposal led to a number of compromises. Part 4 was to be reviewed annually, and to expire in 2006. Moreover, the Special Immigration Appeals Commission (Siac) was supposed to provide a form of appeal in every case. The government has argued that the supervisory role of Siac is an adequate substitute for a trial. It does resemble a trial in that a special advocate is present at closed hearings on behalf of the detainee and has access to all the evidence. But the special advocate is not allowed to talk to the detainee after seeing the closed evidence, so the detainee has no opportunity to challenge it. This is a clear breach of the rights of the detainee. Two of the special advocates have already resigned over this point.

The passing of ATCSA meant that for the first time since 1945 the executive was given power to detain indefinitely without a charge being laid, and, crucially, without the detainee having the opportunity of answering the evidence by which the detention is justified.

Amidst the clash of arms the laws are not silent

These executive assaults on historic liberties have not gone unchallenged by civil liberties groups, human-rights lawyers and even the judicial establishment itself. On 16 December 2004, a magnificent decision by the House of Lords upheld appeals by nine detainees against their detention, quashed the order derogating from Article 5 of the ECHR (by a majority of 8-1), and declared the detention power in Part 4 of ATCSA incompatible with Articles 5 and 14 of the convention. They held it to be disproportionate and discriminatory.

The effect of the decision was to render the detentions unlawful as a violation of the convention. However, because the structure of the Human Rights Act does not permit the courts to invalidate legislation but merely to make a declaration of its incompatibility with the convention, Part 4 remains in force pending its repeal. As a technical matter of law, therefore, the government can justify delaying the release of the detainees, but it is quite clear that they must take steps to comply with the House of Lords’ ruling either by fresh legislation or by using the powers in Section 10 of the Human Rights Act to amend the ATCSA to remove the incompatibility. If it fails to do so promptly it is likely to face a challenge in the European Court of Human Rights.

Repeal is therefore urgent. Of course the government has a duty to protect its people, and the threat of terrorism is real, but the solution is clear: to charge those believed to pose a threat to our security with the appropriate offence and bring them before a court. Ordinary criminal law is perfectly adequate for dealing with those who pose a genuine threat if some minor modifications were introduced. Evidence obtained from telephone tapping should be made admissible. There is support for this change from the police and from the campaigning group Liberty. In relation to the anxiety that revealing the identity of security personnel as witnesses might endanger them a judge could be authorised to allow the identity of a witness to be concealed but this must be a matter for judicial decision rather than executive order.

The welcome to the House of Lords’ ruling of 16 December should be cautious, however. Only one judge, Lord Hoffman, rejected Part 4 on constitutional principle; the other eight did so because the law “contained an inherent inconsistency”, agreeing too with the government that there was a public emergency of sufficient severity to justify derogation from Article 5.

In this light, the government’s subsequent “house arrest” proposal appears an effort to bypass the Lords’ overall judgment against Part 4 by a government that believes it can win any further challenge in the courts.

This article is adapted from Geoffrey Bindman’s inaugural lecture as visiting professor of law at London South Bank University on 8 February 2005

Meanwhile hundreds remain detained without trial throughout the world, the silent victims of a new kind of war, imprisoned by governments who claim the moral high ground in regards to human rights and the rule of law.

It is a disturbing feature of current British and American governments – whose nations have reason to be proud of and to cherish their legal traditions – that in the guise of protecting the public they are ready to abandon principles which are the hallmark of democracy. These are the values we seek to defend and to export to those countries which we see as less fortunate. We are entitled to expect our governments to respect the rule of law and to understand and learn from the lessons of history.

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